Michael P. Farace

The appellant appealed a summary judgment enforcing a guarantee.

He argued the motion judge impermissibly made credibility findings and that the principal debtor's bankruptcy suspended his liability under the guarantee.

The Court of Appeal dismissed the appeal, holding that the motion judge properly found the appellant failed to put his best foot forward, and that a debtor's bankruptcy does not release a guarantor absent specific wording in the guarantee.

The appellant law firm appealed a Small Claims Court decision dismissing its claim for an unpaid solicitor's account.

The trial judge had dismissed the claim solely because the account did not provide time dockets and an hourly rate.

The Divisional Court allowed the appeal, finding that section 2(3) of the Solicitors Act permits lump sum billing provided there is a reasonable description of services rendered and a detailed statement of disbursements.

The court found the account was fair and reasonable, set aside the trial decision, and granted judgment for the unpaid account.

The appellants appealed a trial judgment regarding the wrongful dismissal of a legal assistant who had worked for the appellant lawyer for 17 years.

The appellants argued the trial judge erred by not drawing an adverse inference from the respondent's refusal to waive solicitor-client privilege, by finding the respondent reasonably mitigated her damages, and by dismissing a claim for assigned disbursements.

The Divisional Court dismissed the appeal, finding no error in the trial judge's treatment of privilege, mitigation, or the lack of notice for the assigned disbursements.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondent was awarded costs fixed at $8,500 on a partial indemnity basis, inclusive of GST and disbursements.

The landlord entered into an agreement to sell a commercial property to a third-party purchaser, subject to the tenant's right of first refusal.

After the tenant indicated it would not pay the proposed price, the landlord and purchaser entered into a second agreement without the right of first refusal condition.

The tenant subsequently exercised its right of first refusal, leading both the tenant and the purchaser to seek specific performance.

The trial judge granted specific performance to the purchaser, finding the right of first refusal void for uncertainty.

The Court of Appeal allowed the tenant's appeal, holding that the right of first refusal was enforceable, converted into an equitable interest when the landlord accepted the purchaser's offer, and was not waived by the tenant's negotiating tactics.

The parties owned adjoining cottage properties and shared a mutual driveway.

In 1955, their predecessors in title signed an unregistered agreement granting each other a right-of-way over an 8-foot strip of their respective properties.

The actual driveway used by the parties over the next 45 years expanded into a keyhole shape.

When the appellant purchased her property and attempted to fence the boundary, the respondent successfully applied for a declaration of a prescriptive easement over the expanded driveway.

The appellant appealed, arguing that section 31 of the Limitations Act precludes a prescriptive easement where the use originated in a written agreement.

The Court of Appeal dismissed the appeal, holding that the 1955 agreement created a use as of right, not a permissive use, and therefore the statutory bar did not apply.

The Court also upheld the applications judge's findings on the dimensions and necessity of the easement.